Human Rights – The Foundation of Family Law

Today is Human Rights Day, celebrated the world over to mark the importance of essential freedoms that protect and promote humanity. The UK is fully signed up to the Human Rights Act 1998 (it came into force on 2 October 2000 here). Under the Act, it is unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of any other primary legislation provides no other choice, but the judiciary must take account of any decisions, judgement or opinion of the European Court of Human Rights. If it is not possible to reconcile these decisions with UK law, then the Convention overrides that law.

The theme this year is Human Rights 365, which just means that we shouldn’t view these rights as a novelty, but a basic part of our daily experience as human beings. Human Rights Day is Every Day.

And in the family courts in the UK that will resonate deeply with parents, practitioners and members of the public who have either experienced or followed the evolution, some might say devolution, of the family courts over the last decade.

Article 10 tells us that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Inside the family courts that fairness is eroded through the use of two differing standards, civil and criminal, when trying a parent for alleged neglect or abuse. A parent can find they are tried in both criminal and civil courts for an allegation, but as both courts use different burdens of proofs and standards for evidence, the outcomes often vary. This in itself is manifestly unfair, and leaves the door wide open for further miscarriages of justice.

A recent development which threatens to remove the protections offered through the Convention altogether is the Court of Appeal’s decision that there is no longer a need to consider human rights in private family law cases. The argument the court put forward was that unlike public family law cases where the proceedings were brought by the State, private family law cases were brought by parents and so did not fall under the required remit. The judge took the view that human rights considerations of this nature, in family cases only applied where a public authority was involved and directly responsible for any actions which might lead to interference of a family member’s human rights. The view was that Parliament had provided a legislative mechanism for parties with parental responsibility in this area, which is human rights compliant, and that was that. But this line of thinking is ill-conceived. Even if parents do bring proceedings, they are effectively asking the State to provide a solution, and so once again that decision rests in the State’s hands. So one party has voluntarily asked the State to intervene, whilst the other has no choice. But the State is still the final arbiter in both cases.

These are some of the worrying developments within the family courts which seek to curtail or cut out completely those fundamental human rights that children and parents are entitled to. On Human Rights Day this year, we urge every one of you, parents, practitioners, children and the public, to stand up for those rights and let our government know that human rights are not flimsy philosophical ideals, they are the foundation, the bedrock, upon which family law rests.

It not just policy that clashes with the law; both the law and policy clash with basic expectations of human rights. And both policy and law makers are blind to this.
Both the law and policy are theoretical ambitions that are never attained in many instances. Let me give you one example; the Council of Europe Convention on Contact (ETS 192) has existed for over 10 years.
In turn this is premised on ETS No. 105 dating from 20 May 1980 and covers the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children.
Countries like Albania have signed and ratified the Convention on Contact but not the UK which has not even signed up to the principle.
If, as the argument against signing goes, it would make no difference, then let the UK sign and ratify it and then we can all see if it makes a difference or not ?
Were there any substance to the ever-increasing list of legislation (that tend to fail to live up to their titles) perhaps we would actually need less. Perhaps, if Article 10 had substance (i.e. the one where we are told “everyone” is entitled in full equality to a fair and public hearing by an independent and impartial tribunal), the need for this Blog would not exist.
That would be a wonderful start and then we could then address the civil courts, and mothers and fathers would have an equal opportunity to have their rights and obligations determined in a humane way because underdog and second-class-citizen status would no longer exist (and if it did, it would make no difference).

I think the fair hearing aspect of things goes pear shaped for all sorts of reasons, but many of the problems could be addressed with seriously good training and high ethical standards. It just takes someone with a personality to get the ball rolling….!

Human Rights? They are the myths that the average joe believe exists until they find themselves embroiled with those who either trample all over their human rights or they are used for the establishment’s own gain own when it suits!

I can honestly say I believe the family courts are corrupt, nothing more than a vehicle to remove children from their families legally. I believe that the fact it makes money from the service users to administer so called justice is a conflict of interest.

What I cannot understand is why it has been allowed to run for so long! Sir Munby the President is saying that change is happening. He is making the right noises to convince us but in reality what has changed? Nothing! Children are still being taken from their homes and that level has risen steeply since Mumby has been in office. They have not gone down despite his retoric. The changes he professes are just another myth. It’s all smoke and mirrors but while people believe that things are changing, they are not making waves!

Natasha, we constantly hear of Human Rights in the media usually in connection with an extremist being allowed to remain in Britain, so as not to upset his human rights. The public are outraged! Somehow, those very human rights are responsible and therefore we must get rid of those human rights then we can rid ourselves of the extremists! It’s all propagander to get rid of Human Rights! The general public have no knowledge of family courts until they are involved! They don’t realise the Family Courts disregard their human rights because it is incompatible with the family courts agenda.